That we focus on the continued "need" to ban gay marriage but have no way of resolving the high rate of divorce and single parent families just blows me away. How about making a law that if you get married you're required to stay married? Or how about making a ruling that once a divorce is final there is some sort of leveling off as to how much the loser has to pay the winner?? OR how about worrying about what divorce does to children?

This arguement over gay marriage continues to make me nuts!!!:mad:

Yeah, I followed their reasoning...I'm just disappointed by it. I mean, I'd be right there with them if the aim of the suit were to remove the institution of marriage all together due to claimed discrimination. But expanding who is allowed to get married does not diminish the stated "rational basis" for marriage. It still remains an incentive for heterosexual couples to get married and, considering that, married or not, same-sex couples can adopt, the "better for children" argument doesn't seem to hold much water. So, imho, since the only thing that would be different between upholding the current language of the Domestic Relations law and not upholding it is that a class of citizens is denied equal protection. Allowing that equal access does not invalidate either of the two stated rationalizations.

I understand that the court wasn't claiming that those reasons were good reasons, just that they were logical reasons stemming not from discriminatory aims (though I might argue on that point regarding the second reason). And I will certainly be glad should this result in a legislative change. But I think it sets (or perpetuates?) an unfortunate precident of "well, it's always been like this, and they didn't mean anything by it, so it's not discrimination."

Your reasoning is much the same as in the dissent and it is compelling as regards the two possible rational bases the majority opinion puts forward (I'm assuming that they are offering them as possible bases and not the only possible bases) but no so much the second one wherein there is a common sense basis (not necessarily correct common sense, just in the sense of a folk rationale in the absence of actual evidence) that says heterosexual parenting is better for children than homosexual parenting (and therefore the state would have a rational basis on which to encourage one but not the other). This is the basis on which the opinion seems to more prominently rest. That for a very long time society has been of the opinion that one-woman, one-man is best for child rearing and that there is not yet any sufficient evidence for over turning this folk wisdom.

What I would have liked to see is a requirement that the New York legislature make explicit its reasoning for legislating the exclusion. The court is correct that it is a basic assumption of American legislation and jurisprudence that marriage is one-man, one-woman. If there are valid reasons for this to be continued and invalid reasons, and if a valid reason could become invalid over time through research then the Legislature should be required to make explicit that which was implicit so that it can be properly evaluated.

I was hesitant in posting my response, because I did read this the same way...but then it ocurred to me that homosexual couples can adopt anyway, married or not, civil union or not. I suppose the process of adoption becomes marginally easier with a marriage certificate, but as I understand the process, even married it ain't easy. So again I'd ask (the court, not you in particular, Alex) what the difference would be should same sex marriage be allowed?

Oh, and one aspect of the decision with which I do strongly disagree is the assumption that child welfare is inherently a governmental role. To me this gives the government carte blanche to do anything that can be hooked to the "who will think of the children" wagon.

Since the assumption is that government has the right to interfere in promoting child welfare then the logic that the burden lies in disproving their theory of welfare is sound.

I'm of the view, however, that only in the most extreme situations is government warranted in dictating what is best for children and therefore the burden should be in proving that not only is something harmful but that the resolution is equally clear.

Arguing this, however, is like arguing that the application of the commerce clause is unconscionably broad in its application. For the most part the courts stopped debating the issue a long time ago and the New York view is not unusual.

Presumably the argument would be that even if non-optimal conditions are allowed to exist (such as divorce by parents and same-sex adoption) the state could still make a rational argument for encouraging the optimal over sub-optimal.

However, since single parents can both have children and be gay, if the state took its assumed "defense of the children" role seriously, they would see that the gay parent isn't going to stop being gay in order to enter into a hetero marriage for the benefit of their child, and that anyone who did would by definition be creating a dysfunctional household, which we all know to NOT be in the child's best interests, and therefor encouraging the parent to enter into *A* stable relationship, even with a member of the same sex, would prove far more logical and feasible.

But the state is responsible for the welfare of ALL its citizens, and the state's gay citizens would be better off in stable, contractually-backed relationships than in a perpetual state of singleness. Therefore, if the state took its commission to promote the welfare of its citizens seriously, again, they should sanction gay marriages.

By that logic the state should give everybody a welfare check and not just poor people since everybody could always use more money.

The postulation is that gay people are already disposed towards having children only when they are in a stable relationship (there should be no such thing as an accidental unwanted pregnancy for homosexuals and why would they choose to have a baby in unstable conditions is the thinking, I suppose).

No matter how irresponsible the homosexual sex you get no unwanted and unplanned babies. This isn't true of heterosexual sex. If the goal is simply to encourage people to wait until they are in stable secure relationships to have children then marriage doesn't provide much incentive for gay people as they are likely already waiting for stable secure relationships before going to the hassle of arranging to have a child.

Since heterosexual sex carries risks that are not present in homosexual sex could not the state rationally decide that encouraging homosexuals to limit sex to a single partner would not serve a goal accomplished in encouraging heterosexuals to limit sex to a single partner.

If the state interest is in affecting precreational behavior then it makes some sense to exclude homosexuals.

I don't really endorse that but all the court is saying is that "since the state can make an argument for this exlusion that relies on more than just 'ew, gay is yucky' it isn't our place to dictate legislative priorities."

That's why I would like to see reasoning made explicit. The court is postulating rational justifications. I think they should force the state to play its hands so everybody knows which justifications provide the purpose for the statute. In 1909 "that's just the way it is" was sufficient for this issue. In this ruling the court says that is no longer an acceptable justification. I would have preferred the court said something like "unless the state legislature provides rational justification for the existing law we'll have to assume there is no rational underpinning and overrule."

Then the state would say for reasons A, B, and C we do not allow homosexual marriage and then the pro-marriage could begin work on showing why A, B, and C are no longer valid considerations.